2. Whether an Objective Student Would View the Disclaimer as a Official Endorsement of Religion[edit]

The Supreme Court instructed in Edwards that it has been particularly “vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” 482 U.S. at 583-84. The Supreme Court went on to state that:

Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary.

In ascertaining whether an objective Dover High School ninth grade student would view the disclaimer as an official endorsement of religion, it is important to note that a reasonable, objective student is not a specific, actual student, or even an amalgam of actual students, but is instead a hypothetical student, one to whom the reviewing court imputes detailed historical and background knowledge, but also one who interprets the challenged conduct in light of that knowledge with the level of intellectual sophistication that a child of the relevant age would bring to bear. See, e.g., Child Evangelism, 386 F.3d at 531 (“[A] reasonable observer, ‘aware of

the history and context of the community and forum,’ would know that [the school district] has a policy of assisting a broad range of community groups, that [the district] plays no role in composing the flyers that are sent home and does not pay for them, and that [the district’s] teachers do not discuss the flyers in class.” This detailed, sophisticated knowledge was imputed to elementary-school students.)(internal citations omitted); Good News, 533 U.S. at 119 (Admonished not to proscribe religious activity “on the basis of what the youngest members of the audience might perceive.”).

Plaintiffs accurately submit that reviewing courts often make no distinction between an adult observer and a student observer when deciding whether a public school’s conduct conveys an unconstitutional message of religious endorsement. However, when such a distinction is drawn, as is appropriate to do under the circumstances of this case, courts have recognized that because students are more impressionable than adults, they may be systematically less effective than adults at recognizing when religious conduct is unofficial and therefore permissible. See, e.g., Selman, 390 F. Supp. 2d at 1311 (textbook sticker stating that evolution was theory was particularly likely to convey message of endorsement “given the Sticker’s intended audience, impressionable school students”); Joki v. Bd. of Educ., 745 F. Supp. 823, 831 (N.D.N.Y. 1990) (“To an impressionable student,

even the mere appearance of secular involvement in religious activities might indicate that the state has placed its imprimatur on a particular religious creed.”). Accordingly, the objective student standard is a means to ensure that courts exercise the particular vigilance that the Supreme Court has mandated for protecting impressionable children from religious messages that appear to carry official imprimatur; it is not a tool for excluding or ignoring material evidence. After a careful review of the record and for the reasons that follow, we find that an objective student would view the disclaimer as a strong official endorsement of religion. Application of the objective student standard pursuant to the endorsement test reveals that an objective Dover High School ninth grade student will unquestionably perceive the text of the disclaimer, “enlightened by its context and contemporary legislative history,” as conferring a religious concept on “her school’s seal of approval.” Selman, 390 F. Supp. 2d at 1300; Santa Fe, 530 U.S. at 308; Edwards, 482 U.S. at 594 (in addition to “[t]he plain meaning of the [enactment’s] words, enlightened by their context and the contemporaneous legislative history,” the Supreme Court also looks for legislative purpose in “the historical context of the [enactment], and the specific sequence of events leading to [its] passage”)(internal citations omitted); see also Santa Fe, 530 U.S. at 308 (“Regardless of the listener’s support for, or objection to, the message, an objective

Santa Fe High School student will unquestionably perceive the inevitable pregame prayer as stamped with her school’s seal of approval.”).

We arrive at this conclusion by initially considering the plain language of the disclaimer, paragraph by paragraph. The first paragraph reads as follows:

The Pennsylvania Academic Standards require students to learn about Darwin’s Theory of Evolution and eventually to take a standardized test of which evolution is a part. P-124.

The evidence in this case reveals that Defendants do not mandate a similar pronouncement about any other aspect of the biology curriculum or the curriculum for any other course, despite the fact that state standards directly address numerous other topics covered in the biology curriculum and the students’ other classes, and despite the fact that standardized tests cover such other topics as well. Notably, the unrefuted testimony of Plaintiffs’ science education expert Dr. Alters, the only such expert to testify in the case sub judice explains, and the testimony of Drs. Miller and Padian confirms, the message this paragraph communicates to ninth grade biology students is that:

[W]e have to teach this stuff[.] The other stuff we’re just going to teach you, but now this one we have to say the Pennsylvania academic standards require[] students to. . . eventually take a test. We’d rather not do it, but Pennsylvania academic standards . . . require students to do this.

Stated another way, the first paragraph of the disclaimer directly addresses and disavows evolutionary theory by telling students that they have to learn about evolutionary theory because it is required by “Pennsylvania Academic Standards” and it will be tested; however, no similar disclaimer prefacing instruction is conducted regarding any other portion of the biology curriculum nor any other course’s curriculum.

The second paragraph of the disclaimer reads as follows:

Because Darwin’s Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. P-124.

This paragraph singles out evolution from the rest of the science curriculum and informs students that evolution, unlike anything else that they are learning, is “just a theory,” which plays on the “colloquial or popular understanding of the term [‘theory’] and suggest[ing] to the informed, reasonable observer that evolution is only a highly questionable ‘opinion’ or a ‘hunch.’” Selman, 390 F. Supp. 2d at 1310; 14:110-12 (Alters); 1:92 (Miller). Immediately after students are told that “Darwin’s Theory” is a theory and that it continues to be tested, they are told that “gaps” exist within evolutionary theory without any

indication that other scientific theories might suffer the same supposed weakness. As Dr. Alters explained this paragraph is both misleading and creates misconceptions in students about evolutionary theory by misrepresenting the scientific status of evolution and by telling students that they should regard it as singularly unreliable, or on shaky ground. (14:117 (Alters)). Additionally and as pointed out by Plaintiffs, it is indeed telling that even defense expert Professor Fuller agreed with this conclusion by stating that in his own expert opinion the disclaimer is misleading. (Fuller Dep. 110-11, June 21, 2005). Dr. Padian bluntly and effectively stated that in confusing students about science generally and evolution in particular, the disclaimer makes students “stupid.” (Trial Tr. vol. 17, Padian Test., 48-52, Oct. 14, 2005).

In summary, the second paragraph of the disclaimer undermines students’ education in evolutionary theory and sets the groundwork for presenting students with the District’s favored religious alternative.

Paragraph three of the disclaimer proceeds to present this alternative and reads as follows:

Intelligent Design is an explanation of the origin of life that differs from Darwin’s view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent Design actually involves.

P-124. Students are therefore provided information that contrasts ID with “Darwin’s view” and are directed to consult Pandas as though it were a scientific text that provided a scientific account of, and empirical scientific evidence for, ID. The theory or “view” of evolution, which has been discredited by the District in the student’s eyes, is contrasted with an alternative “explanation,” as opposed to a “theory,” that can be offered without qualification or cautionary note. The alternative “explanation” thus receives markedly different treatment from evolutionary “theory.” In other words, the disclaimer relies upon the very same “contrived dualism” that the court in McLean recognized to be a creationist tactic that has “no scientific factual basis or legitimate educational purpose.” McLean, 529 F. Supp. at 1266.6

6 The McLean court explained that:

The approach to teaching ‘creation science’ and ‘evolution science’ . . . is identical to the two-model approach espoused by the Institute for Creation Research and is taken almost verbatim from ICR writings. It is an extension of Fundamentalists’ view that one must either accept the literal interpretation of Genesis or else believe in the godless system of evolution.

The two model approach of creationists is simply a contrived dualism which has no scientific factual basis or legitimate educational purpose. It assumes only two explanations for the origins of life and existence of man, plants and animals: it was either the work of a creator or it was not. Application of these two models, according to creationists, and the defendants, dictates that all scientific evidence which fails to support the theory of evolution is necessarily scientific evidence in support of creationism and is, therefore, creation science ‘evidence[.]’ 529 F. Supp. at 1266 (footnote omitted)(emphasis added).

The overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory. As the Fifth Circuit Court of Appeals held in Freiler, an educator’s “reading of a disclaimer that not only disavows endorsement of educational materials but also juxtaposes that disavowal with an urging to contemplate alternative religious concepts implies School Board approval of religious principles.” Freiler, 185 F.3d at 348. In the fourth and final paragraph of the disclaimer, students are informed of the following:

With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments. P-124.

Plaintiffs accurately submit that the disclaimer mimics the one that the Fifth Circuit struck down as unconstitutional in Freiler in two key aspects. First, while encouraging students to keep an open mind and explore alternatives to evolution, it offers no scientific alternative; instead, the only alternative offered is an inherently religious one, namely, ID. Freiler, 185 F.3d at 344-47 (disclaimer urging students to “exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion” referenced “Biblical version

of Creation” as the only alternative theory, thus “encourag[ing] students to read and meditate upon religion in general and the “Biblical version of Creation” in particular.) Whether a student accepts the Board’s invitation to explore Pandas, and reads a creationist text, or follows the Board’s other suggestion and discusses “Origins of Life” with family members, that objective student can reasonably infer that the District’s favored view is a religious one, and that the District is accordingly sponsoring a form of religion. Second, by directing students to their families to learn about the “Origins of Life,” the paragraph performs the exact same function as did the Freiler disclaimer: It “reminds school children that they can rightly maintain beliefs taught by their parents on the subject of the origin of life,” thereby stifling the critical thinking that the class’s study of evolutionary theory might otherwise prompt, to protect a religious view from what the Board considers to be a threat. Id. at 345 (because disclaimer effectively told students “that evolution as taught in the classroom need not affect what they already know,” it sent a message that was “contrary to an intent to encourage critical thinking, which requires that students approach new concepts with an open mind and willingness to alter and shift existing viewpoints”).

A thorough review of the disclaimer’s plain language therefore conveys a strong message of religious endorsement to an objective Dover ninth grade student.

The classroom presentation of the disclaimer provides further evidence that it conveys a message of religious endorsement. It is important to initially note that as a result of the teachers’ refusal to read the disclaimer, school administrators were forced to make special appearances in the science classrooms to deliver it. No evidence was presented by any witness that the Dover students are presented with a disclaimer of any type in any other topic in the curriculum. An objective student observer would accordingly be observant of the fact that the message contained in the disclaimer is special and carries special weight. In addition, the objective student would understand that the administrators are reading the statement because the biology teachers refused to do so on the ground that they are legally and ethically barred from misrepresenting a religious belief as science, as will be discussed below. (Trial Tr. vol. 25, Nilsen Test., 56-57, Oct. 21, 2005; Trial Tr. vol. 35, Baksa Test., 38, Nov. 2, 2005). This would provide the students with an additional reason to conclude that the District is advocating a religious view in biology class.

Second, the administrators made the remarkable and awkward statement, as part of the disclaimer, that “there will be no other discussion of the issue and your teachers will not answer questions on the issue.” (P-124). Dr. Alters explained

that a reasonable student observer would conclude that ID is a kind of “secret science that students apparently can’t discuss with their science teacher” which he indicated is pedagogically “about as bad as I could possibly think of.” (14:125-27 (Alters)). Unlike anything else in the curriculum, students are under the impression that the topic to which they are introduced in the disclaimer, ID, is so sensitive that the students and their teachers are completely barred from asking questions about it or discussing it.7

7 Throughout the trial and in various submissions to the Court, Defendants vigorously argue that the reading of the statement is not “teaching” ID but instead is merely “making students aware of it.” In fact, one consistency among the Dover School Board members’ testimony, which was marked by selective memories and outright lies under oath, as will be discussed in more detail below, is that they did not think they needed to be knowledgeable about ID because it was not being taught to the students. We disagree. Dr. Alters, the District’s own science teachers, and Plaintiffs Christy Rehm and Steven Stough, who are themselves teachers, all made it abundantly clear by their testimony that an educator reading the disclaimer is engaged in teaching, even if it is colossally bad teaching. See, e.g., Trial Tr. vol. 6, C. Rehm Test., 77, Sept. 28, 2005; Trial Tr. vol. 15, Stough Test., 139-40, Oct. 12, 2005. Dr. Alters rejected Dover’s explanation that its curriculum change and the statement implementing it are not teaching. The disclaimer is a “mini-lecture” providing substantive misconceptions about the nature of science, evolution, and ID which “facilitates learning.” (14:120-23, 15:57-59 (Alters)). In addition, superintendent Nilsen agrees that students “learn” from the statement, regardless of whether it gets labeled as “teaching.” (26:39 (Nilsen)).

Finally, even assuming arguendo that Defendants are correct that reading the statement is not “teaching” per se, we are in agreement with Plaintiffs that Defendants’ argument is a red herring because the Establishment Clause forbids not just “teaching” religion, but any governmental action that endorses or has the primary purpose or effect of advancing religion. The constitutional violation in Epperson consisted not of teaching a religious concept but of forbidding the teaching of a secular one, evolution, for religious reasons. Epperson, 393 U.S. at 103. In addition, the violation in Santa Fe was school sponsorship of prayer at an extracurricularactivity, 530 U.S. at 307-09, and the violation in Selman was embellishing students’ biology textbooks with a warning sticker disclaiming evolution. 390 F. Supp. 2d at 1312.

A third important issue concerning the classroom presentation of the disclaimer is the “opt out” feature. Students who do not wish to be exposed to the disclaimer and students whose parents do not care to have them exposed it, must “opt out” to avoid the unwanted religious message. Dr. Alters testified that the “opt out” feature adds “novelty,” thereby enhancing the importance of the disclaimer in the students’ eyes.8 (14:123-25 (Alters)). Moreover, the stark choice that exists between submitting to state-sponsored religious instruction and leaving the public school classroom presents a clear message to students “who are nonadherents that they are outsiders, not full members of the political community.” Sante Fe, 530 U.S. at 309-10 (quotation marks omitted). Accordingly, we find that the classroom presentation of the disclaimer, including school administrators making a special appearance in the science classrooms to deliver the statement, the complete prohibition on discussion or questioning ID, and the “opt out” feature all convey a strong message of religious endorsement. An objective student is also presumed to know that the Dover School Board

8 In fact, the “opt out” procedure, as will be detailed herein, is itself clumsy and thus noteworthy to students and their parents, as it involves the necessity for students to have a form signed by parents and returned to the classroom before the disclaimer is read. Despite the fact that if properly executed the “opt out” form would excuse a student from hearing the disclaimer, the need to review the form and have some minimal discussion at least between parent and child hardly obviates the impact of the disclaimer, whether heard or not in the classroom.

advocated for the curriculum change and disclaimer in expressly religious terms, that the proposed curriculum change prompted massive community debate over the Board’s attempts to inject religious concepts into the science curriculum, and that the Board adopted the ID Policy in furtherance of an expressly religious agenda, as will be elaborated upon below. Additionally, the objective student is presumed to have information concerning the history of religious opposition to evolution and would recognize that the Board’s ID Policy is in keeping with that tradition.

Consider, for example, that the Supreme Court in Santa Fe stated it presumed that “every Santa Fe High School student understands clearly” that the school district’s policy “is about prayer,” and not student free speech rights as the school board had alleged, and the Supreme Court premised that presumption on the principle that “the history and ubiquity” of the graduation prayer practice “provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” Santa Fe, 530 U.S. at 315; Allegheny, 492 U.S. at 630; see also Black Horse Pike, 84 F.3d at 1486.

Importantly, the historical context that the objective student is presumed to know consists of a factor that weighed heavily in the Supreme Court’s decision to strike down the balanced-treatment law in Edwards, specifically that “[o]ut of

many possible science subjects taught in the public schools, the legislature chose to affect the teaching of the one scientific theory that historically has been opposed by certain religious sects.” 482 U.S. at 593. Moreover, the objective student is presumed to know that encouraging the teaching of evolution as a theory rather than as a fact is one of the latest strategies to dilute evolution instruction employed by anti-evolutionists with religious motivations. Selman, 390 F. Supp. 2d at 1308. In summary, the disclaimer singles out the theory of evolution for special treatment, misrepresents its status in the scientific community, causes students to doubt its validity without scientific justification, presents students with a religious alternative masquerading as a scientific theory, directs them to consult a creationist text as though it were a science resource, and instructs students to forego scientific inquiry in the public school classroom and instead to seek out religious instruction elsewhere. Furthermore, as Drs. Alters and Miller testified, introducing ID necessarily invites religion into the science classroom as it sets up what will be perceived by students as a “God-friendly” science, the one that explicitly mentions an intelligent designer, and that the “other science,” evolution, takes no position on religion. (14:144-45 (Alters)). Dr. Miller testified that a false duality is produced:
It “tells students . . . quite explicitly, choose God on the side of intelligent design or choose atheism on the side of science.” (2:54-55 (Miller)). Introducing such a

religious conflict into the classroom is “very dangerous” because it forces students to “choose between God and science,” not a choice that schools should be forcing on them. Id. at 55.

Our detailed chronology of what a reasonable, objective student is presumed to know has made abundantly clear to the Court that an objective student would view the disclaimer as a strong official endorsement of religion or a religious viewpoint. We now turn to whether an objective adult observer in the Dover community would perceive Defendants’ conduct similarly.

3. Whether an Objective Dover Citizen Would Perceive Defendants’ Conduct to be an Endorsement of Religion[edit]

The Court must consider whether an objective adult observer in the Dover community would perceive the challenged ID Policy as an endorsement of religion because the unrefuted evidence offered at trial establishes that although the disclaimer is read to students in their ninth grade biology classes, the Board made and subsequently defended its decision to implement the curriculum change publicly, thus casting the entire community as the “listening audience” for its religious message. Santa Fe, 530 U.S. at 308. We are in agreement with Plaintiffs that when a governmental practice bearing on religion occurs within view of the entire community, the reasonable observer is an objective, informed adult within the community at large, even if the specific practice is directed at only a subset of

that community, as courts routinely look beyond the government’s intended audience to the broader listening audience. Otherwise, government would be free and able to sponsor religious messages simply by declaring that those who share in the beliefs that it is espousing are the message’s only intended recipients. See Allegheny, 492 U.S. at 597 (“when evaluating the effect of government conduct under the Establishment Clause, we must ascertain whether ‘the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choice’”) (quoting Ball, 473 U.S. at 390).9

Accordingly, not only are parents and other Dover citizens part of the listening audience for the Board’s curriculum change, but they are part of its “intended audience” as well.

First, the Board brought the public into the debate over whether to include

9 To further illustrate, we note the Third Circuit Court of Appeals’ decision in Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002). In Tenafly, the Third Circuit applied the endorsement test to the question of whether a town would violate the Establishment Clause if it allowed a group of Orthodox Jews to attach markers to utility poles for religious reasons. Although the markers “were attached for the benefit of other Orthodox Jews, not the general public,” the Third Circuit nonetheless performed the endorsement inquiry from the standpoint of a reasonable, informed, objective observer in the community at large. Id. at 161- 62, 174-78. This inquiry performed by the court is logical because although Orthodox Jews were the markers’ “intended audience” in the sense that they were the ones for whose benefit the markers were placed, the markers appeared on utility polices where anyone in the community might see them and attempt to ascertain their meaning, as well as the government’s relationship to them. Id. at 162.

ID in the curriculum as it proposed, advocated, and ultimately approved the ID Policy in public school board meetings. These meetings were such that members of the public not only attended them, but also had the opportunity to offer public comment on the proposal. In those Board meetings, open to the public at large, several Dover School Board members advocated for the ID Policy in expressly religious terms, with their comments reported extensively in the local newspapers, as will be discussed in detail below. Second, at least two Board members, William Buckingham and Heather Geesey, defended the proposed curriculum change in the media in expressly religious terms.

Moreover, it is notable that the Board sent a newsletter to every household in Dover in February 2005 “produced to help explain the changes in the biology curriculum” and prepared in conjunction with defense counsel, the Thomas More Law Center. (P-127). Typically, the Board sent out a newsletter in the Dover area approximately four times a year and in February 2005, the Board unanimously voted to mail a specialized newsletter to the community. (Trial Tr. vol. 15, C. Sneath Test., 98-99, 136, Oct. 12, 2005; P-82). Although formatted like a typical district newsletter, an objective adult member of the Dover community is presumed to understand this mailing as an aggressive advocacy piece denigrating the scientific theory of evolution while advocating ID. Within this newsletter, the

initial entry under the heading “Frequently Asked Questions” demeans Plaintiffs for protecting their Constitutional rights as it states, “A small minority of parents have objected to the recent curriculum change by arguing that the Board has acted to impose its own religious beliefs on students.” (P-127 at 1). Religion is again mentioned in the second “Frequently Asked Question” as it poses the question “Isn’t ID simply religion in disguise?” Id. The newsletter suggests that scientists engage in trickery and doublespeak about the theory of evolution by stating, “The word evolution has several meanings, and those supporting Darwin’s theory of evolution use that confusion in definition to their advantage.” Id. The newsletter additionally makes the claim that ID is a scientific theory on par with evolution and other scientific theories by explaining, “The theory of intelligent design (ID) is a scientific theory that differs from Darwin’s view, and is endorsed by a growing number of credible scientists.” Id. at 2. Evolution is subsequently denigrated and claims that have not been advanced, must less proven in the scientific community, are elaborated upon in the newsletter. “In simple terms, on a molecular level, scientists have discovered a purposeful arrangement of parts, which cannot be explained by Darwin’s theory. In fact, since the 1950s, advances in molecular biology and chemistry have shown us that living cells, the fundamental units of life processes, cannot be explained by chance.” Id. The newsletter suggests that

evolution has atheistic implications by indicating that “Some have said that before Darwin, ‘we thought a benevolent God had created us. Biology took away our status as made in the image of God’ . . . or ‘Darwinism made it possible to be an intellectually fulfilled atheist.’” Id. Finally and notably, the newsletter all but admits that ID is religious by quoting Anthony Flew, described as a “world famous atheist who now believes in intelligent design,” as follows: “My whole life has been guided by the principle of Plato’s Socrates: Follow the evidence where it leads.” Id.

The February 2005 newsletter was mailed to every household in Dover. Even those individuals who had no children, never attended a Dover Board meeting, and never concerned themselves with learning about school policies, were directly confronted and made the “listening audience” for the District’s announcement of its sponsorship of a religious viewpoint. Thus, the February 2005 newsletter was an astonishing propaganda discourse which succeeded in advising the few individuals who were by that time not aware that a firestorm had erupted over ID in Dover.

In addition to being aware of the public debate, over whether to include ID in the biology curriculum, the public board meetings where such proposed curriculum change was advanced in expressly religious terms, and receiving a

newsletter providing detailed information about the ID Policy, the District assigned Dover parents a special role regarding the ID Policy. Parents of ninth grade biology students who are subject to the ID Policy are sent a letter when their children are taking biology, “asking if anyone ha[s] a problem with the [disclaimer] statement,” and calling on them to decide whether to allow their children to remain in the classroom and hear the religious message or instead to direct their children to leave the room. (P-124). When parents must give permission for their children to participate in an activity, the Supreme Court has held that the parents are the relevant audience for purposes of the endorsement. See Good News, 533 U.S. at 115 (parents are relevant audience for determining whether presence of afterschool Bible club at public elementary school conveyed message of religious endorsement because the parents had to give children permission to participate in club); see also Rusk v. Crestview Local Sch. Dist., 379 F.3d 418, 421 (6th Cir. 2004) (parents are audience for flyers distributed to elementary-school students because parents must give permission for children to participate in advertised activities). The converse must also be true, when parents must decide whether to withhold permission to participate in an activity or course of instruction, they remain the relevant audience for ascertaining whether government is communicating a message favoring religion.

An objective adult member of the Dover community would also be presumed to know that ID and teaching about supposed gaps and problems in evolutionary theory are creationist religious strategies that evolved from earlier forms of creationism, as we previously detailed. The objective observer is therefore aware of the social context in which the ID Policy arose and considered in light of this history, the challenged ID Policy constitutes an endorsement of a religious view for the reasons that follow.

First, the disclaimer’s declaration that evolution “is a theory . . . not a fact” has the cultural meaning that the Selman court explained: “[W]hether evolution [is] referenced as a theory or a fact is . . . a loaded issue with religious undertones,” reflecting “a lengthy debate between advocates of evolution and proponents of religious theories of origin[.]” It is “one of the latest strategies to dilute evolution instruction employed by anti-evolutionists with religious motivations.” Selman, 390 F. Supp. 2d at 1304, 1307-08 (citing Edwards, 482 U.S. at 624) (Scalia, J., dissenting) (noting that balanced-treatment act’s sponsor opposed evolution being taught as fact because it would communicate to students that “science has proved their religious beliefs false”); Freiler, 975 F. Supp. at 824 (noting school board members’ concern with teaching evolution as fact because many students in district believed in biblical view of creation). A reasonable observer is presumed to know

the social meaning of the theory-not-fact deliberate word choice and would “perceive the School Board to be aligning itself with proponents of religious theories of origin,” thus “communicat[ing] to those who endorse evolution that they are political outsiders, while . . . communicat[ing] to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders.” Selman, 390 F. Supp. 2d at 1308.

Second, the Dover School Board singles out the scientific theory of evolution, specifically and repeatedly targeting it as a “theory” with “[g]aps,” “problems,” and inadequate empirical support. In singling out the one scientific theory that has historically been opposed by certain religious sects, the Board sent the message that it “believes there is some problem peculiar to evolution,” and “[i]n light of the historical opposition to evolution by Christian fundamentalists and creationists[,] . . . the informed, reasonable observer would infer the School Board’s problem with evolution to be that evolution does not acknowledge a creator.” Id. at 1309.

Third, it is readily apparent to the Court that the entire community became intertwined in the controversy over the ID Policy. The Board’s actions from June 2004 through October 18, 2004, the date the Board approved the curriculum change, were consistently reported in news articles in the two local newspapers, the

The news reports in the York newspapers were followed by numerous letters to the editor and editorials published in the same papers. (P-671; P-672; P-674; P- 675). Although Defendants have strenuously objected to Plaintiffs’ introduction of the letters to the editor and editorials from the York Daily Record and the York Dispatch addressing the curriculum controversy, we will admit such materials into evidence and consider them pursuant to the endorsement test and Lemon’s effect

10 Two exhibit numbers separated by a slash indicates that Plaintiffs introduced different formats of the same article under different exhibit numbers.

11 In fact, Stough testified that he read the York Daily Record and the York Dispatch every day, including on the internet while he was away on vacation, to follow the Board’s actions relating to the biology curriculum change. (15:112-13; 16:4 (Stough)).

prong. The letters and editorials are not offered for the truth of what is contained therein, but they are probative of the perception of the community at large. They reveal that the entire community has consistently and unwaveringly understood the controversy to concern whether a religious view should be taught as science in the Dover public school system. Moreover, and as will be explained below, the letters to the editor and editorials are relevant and probative of the community’s collective social judgment that the challenged conduct advances religion. Epperson, 393 U.S. at 108 n.16.12 As previously noted, the Supreme Court held in Santa Fe that a public school district’s conduct touching on religion should be evaluated under the endorsement test from the standpoint of how the “listening audience” would view it; and, if members of the listening audience would perceive the district’s conduct as endorsing religion or a particular religious view, then the conduct violates the Establishment Clause. Santa Fe, 530 U.S. at 308. Because the endorsement inquiry is not about the perceptions of particular individuals, Plaintiffs do not argue before the Court that any particular letter or editorial, or the views expressed therein, can or should supplant this Court’s consideration of the curriculum change from the

12 In addition, the charts summarizing the letters to the editor and editorials from the York Daily Record and the York Dispatch are admitted under Fed.R.Evid. 1006 as summaries of voluminous materials.

standpoint of a reasonable observer. See Pinette, 515 U.S. at 779 (O’Connor, J., concurring in part and concurring in judgment). Instead, the Court looks to the hypothetical reasonable observer as a “personification of a community ideal of reasonable behavior, determined by the [collective] social judgment.” Id. at 780. The 225 letters to the editor and sixty-two editorials that Plaintiffs have offered constitute what Plaintiffs’ counsel believe to be the entire set of such materials published in the York newspapers serving the Dover community during the period from June 1, 2004 through September 1, 2005, which includes the time period from the first Board meetings in which the proposal to change the biology curriculum was announced through the approximate starting date of the trial in this case. We have been presented with no reason to doubt this assertion. The York Daily Record published 139 letters to the editor regarding the Board’s actions and eighty-six of those letters addressed the issues in religious terms. (16:18-20 (Stough)). The York Daily Record published forty-three editorials regarding the Board’s actions and twenty-eight of such editorials addressed the issues in religious terms. (P-674; 16:22-24 (Stough)). The York Dispatch published eightysix letters to the editor regarding the Board’s actions, sixty of which addressed the issue in religious terms. (16:24 (Stough)). The York Dispatch published nineteen editorials regarding the Board’s actions, seventeen of which addressed the issues in

The 225 letters to the editor and sixty-two editorials from the York Daily Record and York Dispatch that Plaintiffs offered at trial and which we have admitted for consideration in our analysis of the endorsement test and Lemon’s effect prong, show that hundreds of individuals in this small community felt it necessary to publish their views on the issues presented in this case for the community to see. Moreover, a review of the letters and editorials at issue reveals that in letter after letter and editorial after editorial, community members postulated that ID is an inherently religious concept, that the writers viewed the decision of whether to incorporate it into the high school biology curriculum as one which implicated a religious concept, and therefore that the curriculum change has the effect of placing the government’s imprimatur on the Board’s preferred religious viewpoint. (P-671-72, 674-75). These exhibits are thus probative of the fact that members of the Dover community perceived the Board as having acted to promote religion, with many citizens lined up as either for the curriculum change, on religious grounds, or against the curriculum change, on the ground that religion should not play a role in public school science class. Accordingly, the letters and editorials are relevant to, and provide evidence of, the Dover community’s collective social judgment about the curriculum change because they demonstrate

that “[r]egardless of the listener’s support for, or objection to,” the curriculum change, the community and hence the objective observer who personifies it, cannot help but see that the ID Policy implicates and thus endorses religion. It is additionally important to note that our determination to consider the letters and editorials is in line with the Supreme Court’s decision in Epperson. In Epperson, the Supreme Court pointed to letters to the editor in a local newspaper as support for its conclusion that “fundamentalist sectarian conviction was and is” the reason that Arkansas enacted its statutory prohibition against teaching evolution in public schools. Epperson, 393 U.S. at 108. The Supreme Court quoted from three letters published in the Arkansas Gazette to show that the public “fear[ed] that teaching of evolution would be ‘subversion of Christianity,’ and that it would cause school children ‘to disrespect the Bible.’” Id. at 108 n.16.13 Accordingly, taken in the aggregate, the plethora of letters to the editor and

13 The Supreme Court treated the letters as evidence not only of the community’s view that evolutionary theory should be banned because of its perceived religious implications, but also of the public pressures driving the Arkansas legislature to adopt the measure. The Court therefore viewed them as, among other things, shedding light on the legislative purpose underlying the anti-evolution statute.

Plaintiffs accurately submit that in Modrovich, the Third Circuit Court of Appeals departed from Epperson by treating as irrelevant to the purpose inquiry letters from citizens to county officials on the grounds that (1) the letters were not authored by official decision-makers and (2) most of the letters were received after the county made its policy decision. Modrovich, 385 F.2d at 412 & n.4. Importantly, here, Plaintiffs do not offer the letters as purpose evidence, nor will they be considered as such, nor do they ask the Court to find that they prove Defendants’ religious purpose for changing the curriculum. Instead, Plaintiffs offer the evidence pursuant to the endorsement test and Lemon’s effect prong.

editorials from the local York newspapers constitute substantial additional evidence that the entire community became intertwined in the controversy of the ID Policy at issue and that the community collectively perceives the ID Policy as favoring a particular religious view. As a result of the foregoing analysis, we conclude that an informed, objective adult member of the Dover community aware of the social context in which the ID Policy arose would view Defendants’ conduct and the challenged Policy to be a strong endorsement of a religious view.

We have now found that both an objective student and an objective adult member of the Dover community would perceive Defendants’ conduct to be a strong endorsement of religion pursuant to the endorsement test. Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science. To be sure, our answer to this question can likely be predicted based upon the foregoing analysis. While answering this question compels us to revisit evidence that is entirely complex, if not obtuse, after a six week trial that spanned twenty-one days and included countless hours of detailed expert witness presentations, the Court is confident that no other tribunal in the United States is in a better position than are we to traipse into this controversial area. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause

violation has occurred in this case, but also in the hope that it may prevent the obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.